July 17, 2007
CARMEN ANN SANCHEZ, PLAINTIFF-APPELLANT,
LEE SCHWARTZAPFEL, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1356-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 5, 2007
Before Judges Kestin and Weissbard.
Plaintiff, Carmen Sanchez, appeals from the dismissal of her complaint against defendant, Lee Schwartzapfel, seeking palimony and related relief. The motion judge found that the complaint was barred by the applicable statute of limitations. We affirm.
We set forth the facts as alleged in the complaint, giving plaintiff the benefit of all favorable inferences flowing from those facts. Plaintiff and defendant met in Florida in 1987, when plaintiff was eighteen and defendant was thirty years of age. At defendant's request, plaintiff relocated to New Jersey where, in July 1987, they began living together in an apartment that defendant purchased in Cliffside Park. While they cohabited, a daughter was born on February 20, 1991, and a son was born on June 13, 1992. There is no doubt that during the period of their cohabitation, defendant and plaintiff held themselves out as husband and wife and, with the children, formed a family unit. Defendant provided financial support while plaintiff managed household affairs and was the primary caregiver for the children. Among other things, they traveled together extensively and defendant bought numerous gifts for plaintiff.
In August 1994, the parties separated following an altercation that led to the filing of a domestic violence complaint by defendant against plaintiff, which was dismissed. They never resumed cohabitation. After their separation, the children remained with plaintiff in the Cliffside Park residence, and defendant paid child support and the household expenses. Defendant also paid other miscellaneous expenses for plaintiff, such as for dental work and for several vacations, as well as providing defendant with transportation, including the use of a BMW automobile.
In 1995, post-separation issues arose, and both parties retained counsel. In the course of that representation, plaintiff's attorney wrote to defendant's attorney on February 10, 1995. After listing the various issues that needed to be addressed, the letter continued as follows:
My client does not intend for Lee Schwartzapfel to support her for the rest of her life. She intends to get on her feet and support herself. If she is not provided with the necessary temporary rehabilitative support, she will be forced to go on state assistance. Clearly, it is important that your client provide temporary support until my client gets married or obtains a position in the nursing field after completion of her nursing school.
I understand that your client does not want to pay for my client's nursing school. Thus, since my client desires and wants to get back into [the] workforce to support herself, she must get the skills needed. If she is not able to get this support she needs to go back to school; she will be forced to return to Florida to receive the assistance she needs from her family. My client was in the Jackson Hospital School of Nursing, located in North Miami when she met Lee. She can return to this school to complete her degree and become employable.
Your client can see his children in Florida for visitations accordingly.
Although your client denies his promises to send her to nursing school up in the North, where my client reported that he stated had the best nursing schools, you surely must understand that it is important that the mother of his children not become a ward of the state.
Even though you repeatedly state that this is not a palimony case and that your client did not promise to marry my client, my client has an engagement ring, the receipt and the appraisal to the engagement ring, plus evidence which indicates that he held my client out to the world as his wife.
In 1996, defendant married another woman. A child was born of that union in February 2000. In November 2004, following an investigation, an order by the Division of Youth and Family Services transferred custody of plaintiff's children to defendant. Plaintiff was granted, and continues to have, visitation with her son, but apparently has had none with her daughter, whom she has not seen for several years. Following the transfer of custody, defendant stopped his $250 weekly support payment. He provided plaintiff with the option of renting the apartment that had been the family residence, but plaintiff declined. Eventually, a court order was entered in the Family Part which gave plaintiff until November 11, 2005 to vacate the apartment. When plaintiff failed to vacate, defendant, with court permission, had the apartment locks changed on November 17, 2005, and plaintiff was evicted.
On December 22, 2005, plaintiff filed the present action. After reciting the background facts, as generally outlined above, plaintiff's complaint in count one sought palimony, alleging:
32. Commencing in or about June 1987, plaintiff and defendant, having developed a relationship between them, mutually conducted and maintained their personal and financial lives in a family-type shared living arrangement akin to that of a marriage, and a subsequent separation.
33. In accordance with the parties' agreement and their expressed and implied intent, plaintiff provided at appropriate times, love and care to the parties' children, and love and care and companionship to defendant.
34. The aforesaid family-type arrangement continued from in or about June 1987 through March 2005, a period of over 17 years.
1. During the parties' long-term relationship, defendant maintained control and management over the parties' assets acquired and/or enhanced by their efforts, and/or he utilized same to preserve, maintain, enhance and/or benefit the parties' financial activities.
In addition to palimony, plaintiff sought an equitable distribution of the parties' property, and other relief which need not be detailed for purposes of this opinion. The second and third counts sought related relief, including ownership of the apartment and a fifty-percent interest in other assets.
On March 16, 2006, defendant's motion to dismiss the complaint was granted. In pertinent part, the judge stated:
First of all your own complaint does not even allege a promise to pay which would put it into a palimony case. They certainly were not living together as husband and wife at the time of the assertion of this claim or even before the assertion of the claim and the palimony cases, one of the things that you have to have is living together in a relationship akin to a marriage. They weren't living together in that kind of a relationship.
[Plaintiff's attorney who wrote the February 10, 1995 letter] certainly acknowledges that -- so I don't mispronounce it, Mr. Schwartzapfel was saying it's not an alimony case and I don't owe her any support. How can you say she didn't know at that point? Your argument is until he stopped paying the statute of limitations didn't run, start to run. I think when somebody says point blank you're out of luck, this is not a palimony case, we're not going to pay palimony, you certainly clearly are on notice.
So the statute certainly had to run from there. Okay, let's assume I'm wrong on that. As I said before, you haven't pleaded a cause of action for palimony in your complaint to begin with.
Also you've got the question of the single controversy doctrine. You had the landlord and tenancy case that was moved over to I guess the family court and ultimately it was decided. That all happened after the letter from [plaintiff's attorney]. She certainly had notice that she better assert her rights at that point in time.
And I can't say there's an implied contract here or quantum meruit or the other equitable remedies that you allude to. Again there's a recent case, I can't remember the case but the guy worked in the towing business and the palimony gal worked in the towing business and the only thing they could give her was quantum meruit for the value of her services working in the towing business because they couldn't find the other ingredients of a palimony case because I think the court was stretching to do something equitable for the woman.
This woman has had too many bites out of the apple. Now you got too many technical excuses and on top of that as I said your complaint doesn't even plead a cause of action for palimony. So I think the statute of limitations has run for the reasons I've already said. I think the entire controversy doctrine is applicable and on top of that, I don't think they were living in a relationship of husband and wife that would even make it a palimony case at the time you asserted your complaint.
I don't think there's material issues in dispute and therefore I'm going to dismiss the complaint.
On appeal, plaintiff argues that the judge erred in dismissing her complaint on both statute of limitations grounds and entire controversy grounds. She also contends that she should have been permitted to amend her complaint to assert a promise of lifetime support. After her appellate counsel moved to be relieved - a motion which we granted -- plaintiff sought leave to supplement the record with her own pro se brief and appendix. Plaintiff's brief consists of a rambling factual narrative without any legal argument or point headings, see R. 2:6-2, and her appendix contains material not before the motion court. Nevertheless, while recognizing the merit of defendant's opposition, we grant the motion for leave to supplement the record and to file an additional brief and appendix.
We agree with plaintiff that her complaint was not barred by the entire controversy doctrine. R. 4:30A. We conclude that the eviction proceedings in the Family Part did not, in fairness, require plaintiff to assert her palimony claim at the risk of having it thereafter barred. The doctrine is an equitable one that should not be applied "where to do so would be unfair in the totality of the circumstances" and would not promote the objectives of the doctrine. Irish Pub. v. Stover, 364 N.J. Super. 351, 355 (App. Div. 2003) (quoting K-Land Corp. #28 v. Landis Sewerage Auth., 173 N.J. 59, 70 (2002)(quoting Pressler, Current N.J. Court Rules, comments 1 and 2 on R. 4:30A (2002))).
We will also assume for purposes of this opinion that plaintiff's complaint could be read generously to assert a promise of lifetime support, or that plaintiff should have been permitted to amend her complaint, which the motion judge found deficient. R. 4:9-1; Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1988). Our disposition makes a definitive ruling on this argument necessary.
The motion judge determined that plaintiff's complaint was barred by the six-year statute of limitations, N.J.S.A. 2A:14-1, applicable to a palimony claim, which is in the nature of an express or implied contract. In re Estate of Roccamonte, 346 N.J. Super. 107, 117-119 (App. Div. 2001), aff'd in part and modified in part, 174 N.J. 381 (2002). We agree.
Plaintiff's complaint was filed on December 22, 2005. The question is when her cause of action accrued. Holmin v. TRW, Inc., 330 N.J. Super. 30, 35 (App. Div. 2000), aff'd, 167 N.J. 205 (2001). A cause of action for breach of contract accrues when the breach occurs or should, with the exercise of due diligence, have been discovered. Sodora v. Sodora, 338 N.J. Super. 308, 313 (Ch. Div. 2000). The elements of a palimony cause of action are that: (1) the parties cohabited; (2) in a marriage-type relationship; (3) during which defendant promised plaintiff support for life; and (4) there was valid consideration for the promise. Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div.), certif. denied, 186 N.J. 607 (2006). Here, plaintiff could be said to meet these requirements, assuming the promise that we discussed above. However, the cohabitation ceased more than six years before the filing of the complaint, on or about April 1994.*fn1 There could be no palimony claim based on events after that date. As a result, the claim accrued at that time. Lest there be any doubt, in her attorney's letter of February 10, 1995, quoted at length above, plaintiff signified her understanding that defendant did not intend to pay palimony and plaintiff herself was said to have no interest in such lifetime support for herself. Indeed, in a letter of October 3, 1994, included in plaintiff's supplemental appendix, defendant's attorney made various support and visitation proposals to plaintiff's counsel, and concluded with a demand for a release of all claims not addressed, "including but not limited to any claim for palimony."
Thus, we have no doubt that plaintiff's claim accrued in 1994, when cohabitation ceased and that plaintiff was well aware of defendant's position by early 1995, even if she did not fully appreciate its legal significance. The fact that defendant continued to maintain the apartment where his children lived with plaintiff, and paid child support, as well as providing some other financial benefits to plaintiff, does not resurrect her claim which accrued a decade before the filing of her complaint.
As a result, even giving plaintiff the benefit of all favorable inferences, Burg v. State, 147 N.J. Super. 316, 319-20 (App. Div.), certif. denied, 75 N.J. 11 (1977), and assuming a well-pled cause of action, we agree with the motion judge that the complaint was time-barred and subject to dismissal.